The U.S. International Trade Commission (“ITC” or “Commission”) has become an increasingly popular forum for patent litigation involving imported products. Although the ITC does not have power to award damages to patent holders, the injunctive relief it is authorized to grant—exclusion orders enforced by U.S. Customs and Border Protection (“Customs”) interdicting infringing imports, and cease-and-desist orders prohibiting distribution of U.S. inventories—are considered potent forms of relief. When the ITC issues a Final Determination, it also orders the appropriate remedy, commonly called a Limited Exclusion Order. The limited exclusion order generally prohibits any company, including any third party, from (1) importing infringing products for consumption in the U.S. that are manufactured abroad by or on behalf of the respondent or any of its affiliated companies, parents, subsidiaries, or other related business entities, or their successors or assigns; and (2) withdrawing such products from a bonded warehouse for consumption in the U.S.
Companies that are successful in obtaining an ITC exclusion order may believe that they have achieved their objective and are free to move on to other business. Unfortunately, this is not the case. Companies that do not take the necessary steps to enforce their exclusion order run the risk of allowing the continued importation and sale of infringing products. Vigilance and close coordination with both Customs and the Intellectual Property Rights Branch (“IPRB”) are needed to ensure that an exclusion order is properly executed. There are several steps companies and their counsel should take to remain vigilant and help enforce the exclusion order.
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